Sleep Debt: A Cause of (and a Potential Mitigating Factor for) Lawyer Misconduct – Part 1

On the list of essential habits to practice self-care, cultivate well-being and sustain peak performance, good sleep is at the top. But sleep deprivation is common among lawyers facing heavy caseloads, long work hours, pressing deadlines, and high rates of alcohol use, drug addiction and mental disorders. Lack of sleep impairs your focus, memory, decision-making, and judgment, which are necessary to practice law effectively and ethically.

While there are many factors contributing to lawyer misconduct, there is no doubt that sleep debt makes you tired and less capable of meeting the demands of the profession. When you are sleep deprived, it is much harder to think creatively, solve problems, make steady progress on client matters, and communicate effectively as the rules of professional responsibility require.

What is Good Sleep?

In a 2017 study titled Short- and long-term health consequences of sleep disruption and published in the Nature and Science of Sleep journal, sleep is defined as a biologic process necessary for brain health and the functioning of immune, hormonal and cardiovascular systems in the body.

The American Academy of Sleep Medicine and Sleep Research Society jointly recommend at least 7 hours of sleep per night for adults. Besides adequate duration, sleep also has to be of good quality. This means you sleep for most of the time while in bed (at least 85% of the total time), fall asleep in 30 minutes or less, wake up no more than once per night, and drift back to sleep within 20 minutes if you do wake up, according to a report in Sleep Health.

What is Sleep Debt?

The American Sleep Association defines sleep debt as the cumulative effect of a person not having sufficient sleep, either through total sleep deprivation (when you are kept awake for a minimum of 24 hours) or partial sleep deprivation (when you have limited sleep for several days or weeks).

Long-term sleep debt is difficult to repay and the negative effects are persistent. One 2013 study in the American Journal of Physiology found that extended recovery sleep over the weekend reverses the impact of one work week of mild sleep restriction on daytime sleepiness and fatigue, but does not correct performance deficits. 

What Creates Sleep Debt?

Sleep deprivation and disturbances stem from multiple factors, including:

Lifestyle, e.g. consuming too much caffeine, alcohol use, drug abuse, jet lag

Environmental, e.g. excessive noise, excessive light

Psychosocial, e.g. anxiety, worry and rumination; parents of young children; caregivers to a family member with a serious illness

Sleep disorder, e.g. insomnia (difficulty falling or staying asleep), obstructive sleep apnea (disordered breathing that causes multiple awakenings), restless legs syndrome and other movement syndromes (unpleasant sensations that prompt night fidgeting), narcolepsy (extreme sleepiness or falling asleep suddenly during the day)

Medical conditions, e.g. pain, kidney disease, diabetes, neurodegenerative diseases, psychiatric disorders, use of certain medications

There is also a widespread fallacy that lawyers must work long hours for greater achievement, better results, and higher productivity. Getting good sleep is viewed as a luxury, instead of a necessity.

What are the Effects of Sleep Debt?

A 2016 study titled The Prevalence of Substance Use and Other Mental Health Concerns Among American Attorneys and published in the Journal of Addiction Medicine, reported that among the 12,825 lawyers surveyed, 28%, 19%, and 23% experienced symptoms of depression, anxiety, and stress, respectively.

Sleep Debt Affects Your Well-Being

Funded by the American Bar Association Commission on Lawyer Assistance Programs and Hazelden Betty Ford Foundation, the study helped to trigger a Call to Action for Lawyer Well-Being from the Minnesota Supreme Court and create a National Task Force on Lawyer Well-Being comprised of a consortium of organizations such as the American Bar Association (ABA).

Sleep deprivation is cited as one of the major problems lawyers face. Lack of sleep reduces your overall health and wellness, lowers your energy level, and interferes with coordination, agility, and endurance. As Robin M. Wolpert, Chair of the Lawyers Professional Responsibility Board, notes in her March 2019 Minnesota Lawyer article, “The National Task Force Report’s recommendations could be strengthened by prescribing sleep.”

Sleep Debt Affects Your Cognitive Abilities

The normal sleep cycle is comprised of four different stages: 1, 2, 3 of Non-REM (non-rapid-eye-movement) sleep, followed by REM (rapid-eye-movement) sleep. A complete cycle takes about 90 to 120 minutes. Non-REM sleep (which includes deep sleep) is critical for memory formation, and REM sleep (dream state) boosts creativity and problem solving skills.

Sleep deprivation makes you susceptible to lawyer misconduct because it compromises your cognitive skills and disrupts your brain function at a cellular level. In a 2017 study, researchers at the University of California – Los Angeles Health Sciences found that sleep deprivation disrupts brain cells’ ability to communicate with each other, leading to mental lapses that affect memory and visual perception.

A 2007 study, published in the Neuropsychiatric Disease and Treatment journal, states that total sleep deprivation impairs attention and working memory, as well as long-term memory and decision-making. It adds that partial sleep deprivation affects attention, especially vigilance. This makes it more challenging to focus and concentrate on tasks for steady progress and successful completion.

When you lack sleep, your brain does not get to fully remove dead cells, flush out toxins and complete other housekeeping actions through the glymphatic system (functional waste clearance pathway for the vertebrate central nervous system). Sleep enables you to remove waste and make room for new learning, growth and development.

Acquiring and recalling memories take place when you’re awake. But memory consolidation – which allows you to store new memories for future retrieval – occurs when you’re asleep. Memory consolidation frees up space in the brain to acquire new memories and learn new things the next day.

Sleep debt is often associated with dementia, Alzheimer’s disease, and general cognitive decline. It not only makes it harder to acquire and store memories, but also more challenging to recall memories you already made, such as the password for an account.

The prefrontal cortex, which is the cerebral cortex covering the front part of the frontal lobe of the brain, is especially vulnerable to sleep loss. This region of the brain is responsible for executive functions, such as analyzing complex thoughts, processing information, determining right from wrong, making decisions, predicting outcomes, evaluating risks, understanding consequences, prioritizing and sequences actions, exerting control, and moderating social behavior.

In addition, when sleep is disrupted, you miss out on REM sleep, which is important for creative thinking, staying motivated, and generating ideas. During this stage of sleep, your brain makes important neural connections that are needed for mental health and overall well-being.

Sleep Debt Affects Your Mood

Sleep loss is also associated with changes in levels of hormones, such as serotonin, dopamine, and cortisol.

Serotonin is linked with well-being and happiness. It helps regulate the body’s sleep-wake cycles, increases wakefulness in the morning, and keeps moods stable. Low serotonin levels is associated with depression.

Dopamine is also associated with well-being and happiness. But instead of regulating mood, it makes you feel good. Dopamine drives behavior towards things (e.g. drugs) that will activate the pleasure and reward centers of the brain.

Cortisol regulates a wide range of processes in the body, such as blood sugar levels, metabolism and the immune system. It influences memory formation and is critical in helping the body respond to stress. Excessive cortisol levels contribute to mood swings, anxiety and depression.

Sleep Debt Affects Your Mental Health

Sleep, mood and mental states are closely interrelated and often overlap. Anxiety and extreme stress, for example, make it hard to fall asleep or stay asleep. In turn, sleep problems impair your mental health.

A Harvard Health Publishing article, titled Sleep and mental health, notes that studies reveal 65% to 90% of adult patients with major depression experience some kind of sleep problem, such as insomnia and obstructive sleep apnea. It states that sleep problems increase the risk of developing depression and make it less likely to respond to treatment.

Studies further report that 69% to 99% of patients experience insomnia or report less need for sleep during a manic episode of bipolar disorder. Meanwhile, in bipolar depression, 23% to 78% of patients sleep excessively (hypersomnia), while others may experience insomnia or restless sleep. Lack of sleep can trigger mania, destabilize mood and contribute to relapse.

In addition, sleep problems affect more than 50% of adult patients with generalized anxiety disorder, are prevalent in those with post-traumatic stress disorder (PTSD), and may occur in panic disorder, obsessive-compulsive disorder, and phobias. Insomnia can interfere with recovery or exacerbate the symptoms of anxiety disorders.

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For more information on the Role of Sleep Debt in Lawyer Misconduct and Disciplinary Action, read the related article, Sleep Debt: A Cause of (and a Potential Mitigating Factor for) Lawyer Misconduct – Part 2.

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This article provides general information only. Do not consider it as legal advice for any individual case or situation.  

The author, Dyan Williams, is admitted to the Minnesota state bar and focuses on the Minnesota Rules of Professional Conduct, which are subject to change. Check your individual state rules of professional conduct, regulations, ethics opinions and case precedents, instead of relying on this article for specific guidance. 

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Reversal of INA 204(c)/Marriage Fraud Finding + Approval of I-130 and I-485 = A True Success Story

On appeal, a USCIS Field Office reconsidered and reversed its denial of our U.S. citizen client’s Form I-130 petition for her spouse under INA 204(c), which is commonly known as the marriage fraud bar. The Board of Immigration Appeals (BIA) has authority to review such decisions, but USCIS chose to vacate the section 204(c) bar on its own and approve the petition without a BIA order. In addition, the spouse was granted a green card based on his concurrently filed Form I-485 application for permanent resident status. These favorable decisions were made within three months of our filing the Notice of Appeal and within two months of our submitting the legal memorandum to support the appeal.

Beneficiary’s File is Flagged Due to USCIS’ Denial of Prior I-130 Petition by Previous U.S. Citizen Spouse

Section 204(c) of the Immigration & Nationality Act states that no petition may be approved if the beneficiary was previously accorded, or sought to be accorded, an immediate relative or preference status as the spouse of a U.S. citizen or permanent resident, through a sham marriage, i.e. a marriage determined by USCIS to have been entered into for the purpose of evading U.S. immigration laws.

In our clients’ case, the beneficiary was previously married to another U.S. citizen who filed a prior I-130 petition for him. They completed two different interviews with USCIS over a two-year period. They were separated and asked various questions about their courtship and marriage, from which USCIS listed a total of five discrepancies between their answers.

USCIS investigators also went to their shared residence when neither of them was present. The petitioner’s mother – who lived with them – was at the home when the officers arrived. She confirmed the couple resided there with her, but the officers found very few personal items belonging to the beneficiary. Through further investigations, USCIS discovered the beneficiary was the lessee of a separate apartment and determined that he lived there instead of with the petitioner.

With the help of prior counsel, the petitioner and beneficiary submitted a Response to the Notice of Intent to Deny the I-130 petition, in which they described the reasons for the discrepancies at the interview, confirmed they lived together, and explained the separate apartment under the beneficiary’s name was being subleased to another person.

Three months after receiving the Response to the NOID, USCIS denied the I-130 petition based on the discrepancies at the interviews and their investigations from which they determined the beneficiary did not live with the petitioner. The evidence filed with the Response was disregarded. The decision was not appealed because the marriage fell apart and the parties ultimately divorced.

Beneficiary Faces INA 204(c)/Marriage Fraud Bar in Subsequent I-130 Petition by Second U.S. Citizen Spouse

Following his divorce from his first U.S. citizen spouse, the beneficiary entered into marriage to another U.S. citizen, who filed an I-130 petition for him about 18 months after the prior petition was denied. After interviewing the couple, USCIS issued a Notice of Intent to Deny the petition a year later.

In the Notice of Intent to Deny, USCIS acknowledged the couple’s marriage is bona fide and cited to no discrepancies between their testimonies at the interview. The Service, however, pointed out the beneficiary is ineligible for an I-130 approval under INA 204(c), in that his prior marriage was found to be a sham.

Petitioner Receives Guidance on Responding to Notice of Intent to Deny through Consultation

The petitioner contacted our firm, Dyan Williams Law, for help just four days before the Response to Notice of Intent to Deny was due to USCIS. Due to the time constraints and pre-existing commitments, we declined to represent her in the Response, but agreed to provide her with a consultation.

To prepare for the consultation, I reviewed the Notice of Intent to Deny the petition, the earlier Response to Notice of Intent to Deny that was filed by the prior U.S. citizen spouse, and other key items. During our telephone call, I gave the petitioner a list of documents and information to gather and present in her Response. I also summarized applicable case law and essential legal arguments she should mention in her Response.

Using my recommendations, the petitioner filed a timely and persuasive Response, which included a notarized declaration from the beneficiary’s ex-spouse confirming they had a good-faith marriage.

Representation on Appeal Leads to Reversal of INA 204(c) Finding and Approval of I-130 and I-485

A week after receiving the Response to Notice of Intent to Deny, USCIS issued a decision denying the I-130 petition under INA 204(c). The Service found there was no credible evidence to substantiate the claim of a bona fide marriage between the beneficiary and his prior U.S. citizen spouse.

The petitioner contacted me soon after she received the decision. This time, I accepted her case for representation and agreed to prepare and file the appeal on her behalf.

On appeal, I argued it was not the petitioner’s burden to prove her spouse’s prior marriage was bona fide. Rather, the Service has the burden to show by “substantial and probative evidence” that the beneficiary previously attempted or conspired to enter into a sham marriage for U.S. immigration purposes. I cited to applicable law, the credible explanations for the discrepancies at the interviews, and material evidence demonstrating the beneficiary and his prior spouse lived together and shared a real marriage before it ended in divorce. I noted the Service made a reversible error by applying the harsh statute – INA 204(c) – to deny the petition.

About two months after the legal memorandum to support the appeal was submitted, the petitioner informed me that USCIS approved the I-130 petition. She and her spouse also received notice that the concurrently filed I-485 application was reopened by USCIS, on its own initiative.

A couple weeks later, the beneficiary received his 10-year green card in the mail. He is now a permanent resident of the United States who may eventually file for naturalization (citizenship). After more than seven years of seeking to obtain permanent residence – first through a failed marriage and then via his current marriage – he finally achieved true success in his immigration journey with our counsel.

Cheers,

Dyan Williams

Founder & Principal Attorney
Dyan Williams Law PLLC
(612) 225-9900
dw@dyanwilliamslaw.com

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This article provides general information only. It is based on law, regulations and policy that are subject to change. Do not consider it as legal advice for any individual case or situation. Each case is different and case examples do not constitute a prediction or guarantee of success or failure in any other case. The sharing or receipt of this information does not create an attorney-client relationship.

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Avoid the NOID by Supplementing the Record and Responding to RFE

USCIS will issue a Notice of Intent to Deny a petition (e.g. Form I-130 or Form I-140) when it has derogatory information or has evidence the beneficiary is ineligible for the benefit sought. A common example is when there is insufficient evidence of a bona fide marriage between the U.S. citizen (or permanent resident) petitioner and the foreign national beneficiary seeking marriage-based permanent residence.

A NOID is one last opportunity to rebut adverse findings that support a denial of the petition. To avoid a NOID, the petitioner should proactively supplement the record and/or file a full and timely response to USCIS’ Request for Evidence (RFE), if one is issued.

In a July 13, 2018 Policy Memorandum, titled Issuance of Certain RFEs and NOIDS; Revisions to Adjudicator’s Field Manual (AFM) Chapter 10.5(a), Chapter 10.5(b), USCIS officers are given full discretion to deny applications and petitions without first issuing an RFE or a NOID, when appropriate. This includes cases when (a) there is no legal basis to receive the benefit sought and (b) the required initial evidence is not submitted with the petition or application.

RFE and NOID: Similar, But Not the Same

Request for Evidence

An RFE is issued when the officer is uncertain whether or not the request should be approved and needs more evidence to make a decision.

The Policy Memorandum states that in an RFE, USCIS should (a) identify the eligibility requirement that has not been established and why the evidence submitted was insufficient, (b) identify any missing evidence required by statute, regulation or form instruction, (c) identify examples of other evidence that may be submitted to establish eligibility; and (d) request that evidence.

The normal timeframe to submit a response to an RFE is 87 days. A follow-up RFE (or a NOID) might be in order if the response opens up a new line of inquiry or raises eligibility issues that were not considered during initial case review. USCIS may also deny the application or petition if all the requested evidence is not submitted, especially when this prevents a material line of inquiry.

Notice of Intent to Deny

A NOID is given when the officer is leaning toward a denial, but the applicant, petitioner or requestor is unaware of the negative information or its impact on eligibility for the benefit sought.

The Policy Memorandum states, “When a preliminary decision has been made to deny an application or petition and the denial is not based on lack of initial evidence or a statutory denial…the adjudicator must issue a written NOID to the applicant, petitioner, or requestor providing up to a maximum of 30 days to respond to the NOID.”

A NOID is much more serious than an RFE. Unlike an RFE that lists exactly what evidence is missing, a NOID describes derogatory information to support a denial. You have to figure out what evidence and explanations to submit to rebut all the allegations in the NOID and prevent a denial. You also have a shorter time frame (e.g. 30 days instead of 87 days) to address complicated issues.

Supplement the Record and/or File a Full and Timely RFE Response to Avoid the NOID

While the case is pending — and before a Request for Evidence or Notice of Intent to Deny is issued — it is sometimes appropriate to supplement the record with additional evidence.

In a recently approved I-130 petition and I-485 (green card) application case, I counseled my clients to submit written affidavits addressing discrepancies between their oral testimonies at the green card interview with USCIS. Among the discrepancies were very different accounts of the marriage proposal, including where, when and how it occured. In their follow-up affidavits, they provided credible explanations for the differences in their answers.

Furthermore, at the time of the interview, they were living in separate apartments due to financial reasons, cultural factors, and logistical considerations. I advised them to submit rental applications showing they were actively seeking to live together. The supplemental evidence was sent to USCIS a month after the interview.

Four months later, the couple finally moved in together after securing their own apartment. We submitted their joint lease agreement and newly filed joint tax return demonstrating the bona fide nature of their marriage.

Seven months after receiving this supplemental evidence, USCIS issued a Request for Evidence asking for more evidence of a shared life together. The RFE listed examples such as lease(s) showing the same residence, documents showing shared finances and obligations, pictures of their wedding, and sworn affidavits from others with personal knowledge of the validity of the marriage.

Within the 87-day timeframe, we provided a full response including the couple’s new joint lease agreement, shared car insurance and health insurance policies, life insurance record listing one party as the other’s primary beneficiary, letters from neighbors confirming they live together, family photographs, and affidavits from relatives describing their good-faith marriage.

A month after receiving the Response to RFE, the Service approved the I-130 petition. After the updated Form I-693 (Report of Medical Examination and Vaccination Record) was provided, upon request, USCIS soon approved the concurrently filed I-485 application for permanent residence.

The couple had celebrated their second wedding anniversary by the time the I-485 application was adjudicated. A 10-year green card (instead of 2-year conditional card) was issued and there will be no need to file a Form I-751 petition to remove conditions on residence.

Despite the discrepancies at the interview and their living in separate residence for several months, my clients got their case approved by proactively supplementing the record and submitting a full and timely response to the RFE. These actions were key to avoiding a Notice of Intent to Deny, which is just one step short of a denial.

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This article provides general information only. It is based on law, regulations and policy that are subject to change. Do not consider it as legal advice for any individual case or situation. Each case is different and case examples do not constitute a prediction or guarantee of success or failure in any other case. The sharing or receipt of this information does not create an attorney-client relationship.

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Combined Approval of Form I-751, Petition to Remove Conditions on Residence + Form N-400, Application for Naturalization = A True Success Story

USCIS Field Office in California

A USCIS Field Office in California approved both our client’s Form I-751 petition to remove conditions on residence and Form N-400 application for naturalization in a single naturalization interview, held in early March 2019. With the conditions on his residence now removed, he is set to attend his naturalization oath ceremony and become a U.S. citizen.

Conditional Resident Awaiting I-751 Decision May Consider Filing For Naturalization

In many cases, conditional residents are eligible to file for naturalization before the conditions on their residence are removed and they get the regular, 10-year green card. Persons who are granted marriage-based permanent residence when the marriage to the U.S. citizen petitioner is less than two years old are issued a two-year, conditional green card. To get the conditions removed and maintain lawful permanent residence, the applicant and his spouse must file a joint I-751 petition before the two-year card expires, and no earlier than 90 days before the expiration. There are only three types of waivers (exceptions) to the joint filing requirement.

Continuous residence is one eligibility requirement for naturalization. You must reside continuously in the U.S. for at least 5 years as a permanent resident at the time you file your naturalization application. An exception is if you are a qualified spouse of a U.S. citizen, in which case your continuous residence must be at least 3 years at the time you file for naturalization. Continuous residence for naturalization purposes begins on the start date of your permanent residence, even if it is conditional.

As of June 2018, USCIS began issuing Receipt Notices for I-751 petitions that automatically extend the conditional resident status for 18 months past the expiration date of the two-year card. Previously, the extension was for 12 months, after which the person would need to obtain a temporary I-551 stamp (evidence of conditional residence) at a local USCIS office. The change was made to accommodate longer processing times for I-751s and to allow conditional residents to automatically keep their lawful status and maintain work and travel authorization in the interim.

Naturalization Interview Scheduled Before Conditions Removed

Our client’s naturalization interview was scheduled before he received a decision on the Form I-751 petition. At the naturalization interview, the USCIS officer exercised his authority to approve the I-751 even though it was still sitting at a USCIS Service Center awaiting adjudication. This cleared the way for the conditional resident to become a U.S. citizen.

Filing of Form I-751 Petition

Although both the Form N-400 and Form I-751 may be pending at the same time, the I-751 must always be filed first. A conditional resident may not become a naturalized U.S. citizen until the I-751 petition is first approved.

In December 2017, we filed a timely, joint Form I-751 petition with the USCIS California Service Center in Laguna Niguel, California. To demonstrate the conditional resident entered into and continued to have a good faith marriage with his U.S. citizen spouse, we submitted affidavits describing their relationship, shared car insurance policy, joint bank account and credit card account statements, and evidence of their home ownership.

The I-751 was initially transferred from the California Service Center to another USCIS Service Center. In June 2018, we received a Transfer Notice from the Service Center in Arlington, VA stating it was transferring the I-751 back to the California Service Center to speed up processing. Then in December 2018, we received a Transfer Notice from the California Service Center stating it completed a preliminary review of the petition and was transferring the case to the National Benefits Center in Lee’s Summit, MO for adjudication.

Filing of Form N-400 Application

The I-751 had been pending with USCIS for 10 months when the naturalization application was filed. Within three months of receiving the Form N-400, our client received his naturalization interview notice. It did not instruct him to have his U.S. citizen spouse accompany him or to bring evidence of their bona fide marriage. Nonetheless, I counseled him to do so, particularly because USCIS had yet to approve the I-751 petition and lift the conditions on his residence.

Attorney Appearance at Out-of-State Naturalization Interview

With our law firm based in Minneapolis, Minnesota, I flew out to California to attend the naturalization interview. My client could have retained local counsel to appear with him, but he insisted on having me there. (U.S. immigration is governed by federal laws, regulations and policies, which allow for representation at a USCIS Field Office by an out-of-state attorney.) 

The naturalization interview started off with his completing and passing the Civics Test and English Test. Then the USCIS officer went through his naturalization application, page by page. 

To prepare for the naturalization interview, my client and I had discussed potential questions about his marriage to the U.S. citizen petitioner, their relationship history, and his U.S. immigration record. Among his concerns was that he had been previously denied entry to the United States as a visitor by the U.S. Customs & Border Protection, after being employed in the country on a temporary worker visa for an extended period. I advised him on how to best respond truthfully to this issue, which did end up being raised by the USCIS officer at the interview.

Naturalization Expected

When the USCIS officer stated he would approve the N-400 application, I reminded him the I-751 petition was still pending. The officer was not aware of this because the file had not been flagged. He agreed to call in the U.S. citizen spouse, who had accompanied us to the Field Office and was seated in the waiting room.

Both the conditional resident and his spouse answered questions and presented documentary evidence on the bona fide nature of their marriage. At the end of the interview, the officer said he would also approve the I-751 petition. Even though he did not have the original I-751 filing,  and did not review the copy we had with us, he favorably adjudicated the petition based on the testimony and evidence presented.

A day after the interview, USCIS issued the Form I-797, Approval Notice for the I-751 petition. My client soon sent me an email stating, “When I checked online the status of the N-400 on USCIS website it now says they approved my application, and the next step is to wait for the Oath Ceremony invitation letter in the mail, so looking forward to this very much…Thanks again for all your help. You really made a difference in our lives.

We expect him to be scheduled for a naturalization oath ceremony and to become a U.S. citizen. This is a true success story. 

Cheers,

Dyan Williams

Founder & Principal Attorney
Dyan Williams Law PLLC
(612) 225-9900
dw@dyanwilliamslaw.com

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This article provides general information only. It is based on law, regulations and policy that are subject to change. Do not consider it as legal advice for any individual case or situation. Each case is different and case examples do not constitute a prediction or guarantee of success or failure in any other case. The sharing or receipt of this information does not create an attorney-client relationship.

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Approval of I-601A Provisional Unlawful Presence Waiver + Immigrant Visa Grant = A True Success Story

U.S. Citizenship & Immigration Services (USCIS) approved the Form I-601A, Application for Provisional Unlawful Presence Waiver, of the spouse of a U.S. citizen after denying his two earlier requests. On the first try, he had prior counsel’s help. His second attempt was made pro se. With our representation in the third and final I-601A application, he persuaded USCIS to grant the waiver on the merits, based on the extreme hardships his U.S. citizen spouse would suffer if he were denied lawful admission to the United States. He further received an immigrant visa within three weeks of attending his interview at the U.S. Consulate abroad.

Problem: Unlawful Presence Bar

Section 212(a)(9)(B)(i) of the Immigration & Nationality Act (INA) states that a person who accrues unlawful presence in the U.S. for more than 180 days, but less than one year, and then departs the U.S. prior to commencement of removal proceedings, is barred from re-entering the country for three years.  The bar to re-entry is 10 years if the unlawful presence lasted one year or more. The 3/10 year unlawful presence bar is triggered when the person departs the U.S. – even if it is to legalize his status by applying for an immigrant visa at the U.S. Consulate overseas.

Our client could not adjust to permanent resident status within the United States, despite being the beneficiary of an approved I-130 immigrant petition filed by his U.S. citizen spouse. The reason is he entered the United States without proper inspection and did not meet the lawful admission requirement to file for a green card inside the country. A departure from the U.S. was necessary for him to get his immigrant visa and then return as a permanent resident.

Because he had been in the U.S. for almost 20 years without authorization (by the time the third waiver request was filed), he was subject to the 10-year unlawful presence bar to re-entry. USCIS’ grant of the I-601A provisional waiver gave him some assurance – but no guarantee – that he would be issued the immigrant visa at the U.S. Consulate. The I-601A waiver covers only the unlawful presence bar, so it is subject to revocation by the U.S. Consulate if other inadmissibility grounds apply.

In its decisions denying the previous two I-601A waiver requests, USCIS stated that prior to his last illegal re-entry, the applicant may have entered the U.S. without inspection and admission or parole on more than one occasion and he may have been unlawfully present in the U.S. for more than one year during prior stays.

I advised the applicant and his spouse that if he had indeed illegally re-entered the country after accruing more than one year of unlawful presence, he would have a permanent bar under INA 212(a)(9)(C). While a person may file a separate Form I-212 application to be excused from this permanent bar, he may not do so until he has been outside the United States for at least 10 years.

After being advised of the risk of being found inadmissible under INA 212(a)(9)(C), in addition to INA 212(a)(9)(B)(i), the applicant agreed to still move forward with the I-601A waiver application and depart the U.S. for consular processing.

Solution: Provisional Waiver

To support the I-601A waiver application, I submitted a legal memorandum clarifying the applicant had just one illegal entry to the United States and was subject only to the 10-year unlawful presence bar. I pointed out that the earlier entry date on his Temporary Protected Status (TPS) application was filled out in error by a notario – without his knowledge and consent – to meet the TPS eligibility requirement. In the TPS request, he did not provide any evidence or information reflecting that earlier entry date because it did not actually occur.

I also counseled the applicant and his spouse on the documentary evidence and information to submit to meet the extreme hardship requirement. This came with challenges because the spouse did not have any serious medical condition, life-threatening illness, or other individual factor to show she would face extreme hardship due to her staying in the U.S. without her spouse or relocating abroad to be with him.

The legal memorandum outlined a multitude of factors and the totality of the circumstances to satisfy the extreme hardship standard. For instance, we described the spouse’s vulnerability to psychological problems, her reliance on him to care for their three young children, and the poor living conditions and high crime rate in his home country.

Outcome: Waiver Approval + Immigrant Visa Grant

Within four months of receiving the Form I-601A waiver application, USCIS approved it. I next provided further counseling to the applicant and his spouse on the Immigrant Visa application process and what to expect at the visa interview.

As planned, the applicant departed the United States to appear for his immigrant visa interview at the U.S. Consulate in his home country. No additional inadmissibility grounds, such as the INA 212(a)(9)(C) bar, were found by the Consulate. The I-601A waiver excused him from the 10-year unlawful presence bar and allowed him to receive the immigrant visa.

His spouse sent me a note confirming he was admitted to the United States with his immigrant visa and was granted lawful permanent residence. She wrote, “We thank you for your diligent work and your representation. I am very satisfied with your legal services and will refer you with no hesitation.

The two prior I-601A denials and possible INA 212(a)(9)(C)(i) bar did not deter the applicant from pursuing the waiver a third time before finally receiving it and the immigrant visa 11 years after the I-130 had been filed. Thankfully, he was able to return home to his family and continue his life in the U.S. as a permanent resident, after living in the country for almost 20 years without status.

Representing the applicant in his third and final I-601A waiver request and guiding him through the Immigrant Visa process led to true success.

Cheers,

Dyan Williams

Founder & Principal Attorney
Dyan Williams Law PLLC
(612) 225-9900
dw@dyanwilliamslaw.com

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This article provides general information only. It is based on law, regulations and policy that are subject to change. Do not consider it as legal advice for any individual case or situation. Each case is different and case examples do not constitute a prediction or guarantee of success or failure in any other case. The sharing or receipt of this information does not create an attorney-client relationship.

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